Sunday, December 4, 2011

Another Ten Commandments Display...Is This One Different?

On Sunday, November 27, 2011, the residents of Dixie County, Florida, rallied in front of the county courthouse in support of a granite monument engraved with the 10 Commandments seated in front of this government building. The monument was funded by a local businessman named Joe Anderson, Jr. No government money was used for the construction or installation of the monument, but the positing of this structure was approved by the Dixie County Commissioners.

However, this monument contains not only the Decalogue, but also an admonition which reads “Love God and keep his commandments.” One woman involved in the rally carried a sign reading “If you don’t like what our USA was built on, GET OUT.”

The Florida ACLU filed suit against the county in federal district court and won; the county then appealed. Americans United subsequently filed an amicus brief in support of the strict separation of church and state. They “argued that Commandments displays have become weapons of choice in the Religious Right’s crusade to make America an officially Christian nation.” Joseph L. Conn, for Americans United, adds that America was not built on the Ten Commandments, but on “the constitutional separation of church and state.”

This case is important for us to consider so that we may gain some clarity over where the court stands on these issues. As we have seen, the rulings of the court in Ten Commandments cases are seemingly contradictory. However, I disagree with the ACLU and Americans United for several reasons, and I believe that the court’s rulings in this area are not as contradictory as one might think.

First, Americans United argues that America was founded on the constitutional separation of church and state, but this separation is nowhere mentioned in the constitution. The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” Therefore, if the constitution merely asserts that no federal religion shall be established, then certainly no private funding of religious monuments can possibly be considered establishment even if the structure is on government property. However, this is not the only basis on which I disagree with Cobb’s position.

I accept the court’s reasoning that the Ten Commandments are an important part of America’s history as a state. Therefore, the Decalogue’s importance is not only religious, but historical as well, a significant part of the decision in both Pleasant Grove v. United States and Van Orden v. Perry. This means that, if we accept the Lemon Test, there is a secular purpose to display such a historical monument.

Finally, as Scalia notes in his concurring opinion in the Van Orden Case, the government cannot exhibit any hostility toward religion. Instead, it must exercise benevolent neutrality so as not to directly benefit or inhibit any one religion (again, according to the Lemon Test).

In McCreary v. ACLU, the Supreme Court ruled that a government sponsored display of the Decalogue in a Kentucky Courthouse violated the Establishment Clause, and rightly so in regard to precedent since it appealed to the Lemon Test to show that there was no secular purpose for the government’s sponsorship of this display. On the same day, in Van Orden v. Perry, the court ruled that a privately funded display of the Ten Commandments outside of a Kentucky Courthouse did not violate the Establishment Clause on the basis of the criteria I have already mentioned. The difference in the sources of funding and status of sponsorship in these cases was pivotal in the court’s rulings. I therefore believe that these decisions were not as contradictory as we might believe at first glance.

Into which of these two categories, then, does our current case fit? The Decalogue was privately funded by a local businessman, and therefore it would seem the correct precedent to consider is Van Orden. I do not believe that this case constitutes a violation of the Establishment Clause for the reasons mentioned above. However, there is one thing left to consider.

In Pleasant Grove v. United States, the court appealed to a reasonable observer to argue that the Ten Commandments would not be understood as a form of proselytizing. As I mentioned, however, this monument contains the admonition “Love God and keep his Commandments.” An important question therefore arises: does this constitute a form of proselytizing that goes beyond the scope of the Decalogue itself?

Although I have many concerns over the practice of invoking a reasonable observer in these cases from the beginning, it is largely irrelevant in this instance since I believe that this statement is no more than a summary of the Commandments, which themselves profess what they say. If the Decalogue itself is not seen as a form of proselytizing, then I do not feel that this admonition can be seen in this way either.


Zoey Goldnick said...

I can appreciate and understand the Ten Commandments as a historical piece and have gained much sympathy from Carter's views on religion in the public square. I do think there is a difference between representing one's religion and actively promoting it or proselytizing. When the command to follow God is placed on the monument it becomes more of a statement than the passive monument and I believe, an inappropriate object on government grounds.

Doug Indeap said...

Consider that separation of church and state is a structural principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of the people (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

Moreover, while the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision ("no religion shall be established by law, nor shall the equal rights of conscience be infringed") and ultimately chose the more broadly phrased prohibition now found in the Amendment. In keeping with the Amendment's terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion--stopping just short of cutting a ribbon to open its new church.

Ashley R said...

I agree with Chris that Van Orden is the proper precedent for this case. If the Supreme Court can rule a privately funded monument of the Ten Commandments constitutional, then they can render the same decision here. Even though the monument has an addition, Chris is largely correct that the added words is summation of the Commandments: “Love God” summarizes Commandments 1-4 and “Keep His Commandments” simply states the purpose of having Commandments – so that people may follow them. Overall, I think the Supreme Court would rule in favor of keeping the monument.

Harry R. said...

I disagree with Chris and feel that precedent will mandate ruling against the monument. The reasonable observer issue differentiated between McCreary and Van Orden, for the Van Orden monument was upheld based on its position amongst other monuments. However, in this case the monument seems to be centrally placed and one of few such displays. Additionally, the statement below the commandments adds an imposing aspect to the display not presented by the Commandments alone. Based on these facts, a reasonable observer would rightly view the state as endorsing particular religious views representing a violation of the Establishment Clause.

Grant Z said...

I agree with Zoey and Harry. I think this monument is far more imposing and centrally located than the one in Van Orden. The message at the bottom also adds an additional religious intensity to the monument. I think a line must be drawn in cases involving these monuments, and to answer the question in the title, I really think the location and additional message at the bottom make this one different.

Molly Veelguski said...

I'd have to agree with Zoey, Harry, and Grant. The monument is quite striking with it imposing religious message at the bottom. The fact that the wording on the bottom is a very big and bold font, only suggests that the 10 commandments are intended for a religious purpose not a historical one. The location as well creates a problem as well and is highly inappropriate.

Callie B said...

I disagree with Chris that a reasonable observer would note Love God as a summary of commandments 1-4. A reasonable observer would see this as an order, an order sponsored by the state. While I already disagree with the Van Orden decision, I do not even believe that this case could be justified by the precedent of Van Orden. The plaque at the bottom deprives the monument from any previous interpretation as a monument to our legal history, and transforms it into a proselytizing monument.